After a 13 day trial in Vancouver, BC, reasons for judgement were released yesterday awarding a Plaintiff $45,000 plus special damages (out of pocket expenses for treatment of injuries) as a result of a 2001 BC car accident. This was a ‘headache claim’ and the primary issues were whether the Plaintiff’s headaches were caused by the BC car accident and if so, how much money the injury claim was worth.
At trial the BC personal injury lawyers on opposing sides were miles apart in their view of the value of the case in their submissions to the court. The Plaintiff’s lawyer alleged permanent impairment of her capacity to earn income and sought damages in excess of $900,000. The personal injury lawyers defending the claim responded that the Plaintiff only suffered from mild soft tissue injuries and that damages between $10,000 – $20,000 were appropriate.
It is quite common for lawyers on opposing sides of ICBC claims to take very different positions at trial and this case is a good example of how far apart 2 sides to an ICBC claim can be. In this case the Plaintiff presented a case of chronic headaches which interfered with tasks of daily living including work. The defence lawyers presented a case alleging mild soft tissue injury with headaches resolving a short time after the accident. At the end of the trial the court largely sided with the defence lawyer’s position.
The Plaintiff was 19 at the time of the accident. As she was driving the defendant turned left directly in front of her lane of travel. She had the right of way. She had time to step on the brake and the clutch of her vehicle, shift into neutral and brace herself for the impact. The accident was described as a t-bone collision by the Plaintiff although the court noted that the front left portion of the Plaintiff’s car struck the driver’s side door of the other vehicle in this BC car accident claim.
As is often the case in ICBC claims alleging an ‘impaired earning capacity‘ due to a BC motor vehicle accident, the court heard from a variety of doctors as ‘expert witnesses’.
Dr. Robinson, a neurologist who specializes in headache disorders, testified on behalf of the Plaintiff. He stated that her headaches ‘have features consistent with a diagnosis of chronic post-traumatic headache of a migrainous type.’
Dr. Chu, a physiatrist (specialist in physical medicine and rehabilitation) testified that the accident “is the direct cause of (the plaintiff’s) mechanical left upper neck pain. This in turn is the cause of her secondary cervicogenic headaches”
Dr. Vincent, a cutting edge specialist in Anaesthesiology and Interventional Pain Medicine, also testified and gave evidence which ended up largely supporting the Defendant’s position. Dr. Vincent injected anaesthetic medications into the Plaintiff’s neck on two occasions. Unfortunately neither of the injections relieved the Plaintiff’s headache. After a rigorous cross-examination Dr. Vincent testified that the Plaintiff’s results were inconsistent with a ‘causal relationship between an injury…to the neck and the headaches the Plaintiff experiences.”
The defence lawyer relied on the opinion of Dr. Jones, a neurologist, who testified that the Plaintiff’s headaches are ‘true migraines that have arisen spontaneously and are unrelated to any injury to her neck or cervical spine’.
The court preferred the evidence of Dr. Jones. The court found that the BC accident ‘did cause an exacerbation of (pre-existing) headaches’ and that ‘those headaches largely resolved and (the Plaintiff) had returned to her pre-accident state of health within approximately 10 months following the accident.‘
The court found that there were problems with the Plaintiff’s evidence and that her present recall of symptoms in the months after the accident was ‘unreliable’. The ultimate finding was that all of the Plaintiff’s headaches sinced 2002 were ‘primarily migraine headaches that she would have developed (even without the accident)’.
The court awarded $45,000 for pain and suffering and the Plaintiff’s special damages up to March 16, 2002.
This case is a great example of the different positions opposing lawyers can take in court in an ICBC claim and results such as this one should be reviewed when in settlement negotiations with ICBC for a ‘headache’ claim as a result of a car accident.
Do you have questions about this case or an ICBC headache claim? Are you looking for a free consultation with a ICBC claims lawyer? If so click here to arrange a free consulation with ICBC claims lawyer Erik Magraken.